and liabilities of a feme sole. The doctrine was stated in the judgment in Willard v. Eastham, but the court said that it could not " assent to the principle upon which it is founded." To that decision may be traced whatever anomalies or peculiarities may be found in the subsequent cases.

The matter is probably set right for the future by the Act of 1874, c. 184, which provides that a married woman may "make contracts, oral and written, sealed and unsealed, in the same manner as if she were sole."

It

EQUITY JURISDICTION. Another act has been passed by the General Court to give equity jurisdiction to the Supreme Court (1875, c. 235). provides that the Court shall have jurisdiction in equity to apply in payment of debts property which has been fraudulently conveyed. The condition of the law before this act will be understood from the following case :

In 1864, a bill was filed by the Mill River Loan Fund Association against J. H. Claflin, to compel the application to a debt of certain land which the debtor had fraudulently conveyed, taking back a bond for reconveyance. The Court held (9 Allen, 101) that its equity jurisdiction did not extend to the case, because the remedy at law was plain, adequate, and complete. This remedy at law was a statutory provision by which the creditor on obtaining judgment might levy his execution upon the land as if the title stood in the name of the debtor; this levy was void unless the creditor should, within a year, bring an action for possession against the person in whose name the legal title stood; if in this action he failed to show that the land had been fraudulently conveyed, and, therefore, could not hold it under the levy, he might, by a third action (scire facias), obtain a new execution for his debt. Compared with the remedy in equity, these proceedings do not appear to be very adequate ; but the decision of the Court in the case above mentioned was undoubtedly in accordance with the construction which has been uniformly placed upon the act giving it equity jurisdiction.

The Act of 1857, c. 214 (incorporated with Gen. Sts. c. 113, s. 2), gave the Court "full equity jurisdiction according to the usage and practice of courts of chancery, in all cases where there is not a plain, adequate, and complete remedy at law." It had always been a rule of courts of chancery not to take jurisdiction of matters where there was such a remedy at law; and for a long time it had been pretty well settled in what cases and on what principles, "according to the usage and practice of courts of chancery," the remedy at law was not plain, adequate, and complete; beyond such cases, the most general jurisdiction in equity did not extend. But it was also a rule that when courts of chancery had once acquired jurisdiction of a subject, they retained it, even if the defects in the common law were afterwards remedied.

In terms similar to those of the Massachusetts act, the statutes of the United States contain a provision, which has been in force ever since 1789, that suits in equity shall not be sustained "in any case where plain, adequate, and complete remedy may be had at law."1 The meaning of these words has been declared by the greatest of American equity lawyers. In Bean v. Smith, 2 Mason 270, where the objection to the jurisdiction was taken, Mr. JUSTICE STORY Said :

1 The Judiciary Act, 1789, c. 20, s. 16.

"I take this clause to be merely affirmative of the general doctrine of courts of equity, and in no sense intended to narrow the jurisdiction of such courts. It has been repeatedly held by the Supreme Court that the equity jurisdiction of the courts of the United States does not depend upon what is exercised by courts of equity, or courts of law, in the several states, but depends upon what is a proper subject of equitable relief in courts of equity in England, the great reservoir from which we have extracted our principles of jurisprudence."

More than fifty years afterwards, in a case where the same objection to the jurisdiction was taken, the Supreme Court also asserted that this clause was "merely declaratory of the pre-existing rule." Oelrichs v. Spain, 15 Wall. 228.

Notwithstanding the established usage of courts of chancery, and notwithstanding the construction which had been given by the courts of the United States to this clause, the Court in Massachusetts held that it did not have general equity jurisdiction, but that its jurisdiction was limited by the clause, "Where there is not a plain, adequate, and complete remedy at law." In determining the extent of this limitation, the established construction given to the phrase, “plain, adequate, and complete remedy at law," by the Court of Chancery and the Supreme Court of the United States, was not followed; a much more extensive signification was given to it, which practically excludes equity jurisdiction in almost every case except where the party would be remediless without it. It has even been held that the remedy which will exclude jurisdiction in equity need not be a remedy in any court, but that it is an adequate remedy if a party can right himself by his own act: Boston & Fairhaven Iron Works v. Montague, 108 Mass. 248, 251; the lawfulness of his act might be determined judicially when the other party sued him for it. The jurisdiction depends upon the existence of some peculiar circumstances which prevent the party from obtaining another remedy, and the circumstances are often such as are entirely immaterial to the merits of the case, or to the right of the party to the relief sought. This limitation, although exceedingly strict, is so uncertain that it is often almost impossible to predict whether a remedy may be had in equity, or whether it must be sought elsewhere. The difficulties of the subject may be seen by reference to the following cases: Pratt v. Pond, 5 Allen, 59; Dodd v. Clark, 11 Gray 495; Bassett v. Brown, 100 Mass. 355; Bassett v. Brown, 105 Mass. 551, 560; Jones v. Newhall, 115 Mass. 244; Suter v. Matthews, 115 Mass. 253.

Besides the direct effect of depriving the public of the advantage of the best part of the law, the indirect effects of narrowing the equity jurisdiction have been disastrous. It has checked the development of its principles, and has naturally prevented the study of equity; for a subject has but little attraction when the range of its application is so narrow. It is hard to see what ground there is for such a limitation. Certainly there is nothing in our situation or our institutions which makes an equitable jurisdiction unnecessary, or which supplies its place. The need for it is greater here even than in England; for in England the courts of common law for a long time have had powers to give equitable relief, which courts of common law have never possessed here, and which no attempt has ever been made to give them. In 1852, the Common Law Procedure Act gave the courts of common law power

to allow a defendant to plead as a defence any facts which would entitle him to relief in equity against a judgment; to grant injunctions in cases of breach of contract, or other injury for which an action has been brought; to order an interpleader; and to compel discovery. Yet no suggestion has been made that it would be desirable to deprive the Court of Chancery of jurisdiction in every instance where the party might perhaps work out a remedy in the Queen's Bench under the statutes.

It is somewhat remarkable that, in 1692 and 1693, acts were passed by the Provincial General Court, establishing a Court of Chancery with general jurisdiction in matters of equity. These acts allowed an appeal to the Privy Council only where the matter in controversy exceeded the value of £300 sterling; and for the reason that appeals were excluded in other cases, the acts were repealed by the Privy Council. No other attempt appears to have been made to establish a general jurisdiction in equity till 1857. The remedies which the courts of common law gave were imperfect and inadequate; but in the time of the colonies and the province the requirements probably were not great, and people got along with what they had, as they did in England before the jurisdiction of the Court of Chancery had begun to grow up. As the necessity for equity made itself felt, the difficulty was met by passing statutes from time to time giving the Court equitable jurisdiction in specified cases, and as very little was known about equity, it was confined within the narrowest limits. But the difficulties were continually increasing, and at last, in 1857, it was attempted to remove them by passing the act, which was supposed and is still supposed by many, to establish a general jurisdiction in equity. This attempt failed, and in the present year the process has been begun again of giving equity jurisdiction in particular cases. We are still far from being in as good a position as we should have been, if the provincial acts passed more than a hundred and eighty years ago had remained in force.

court.

NEW YORK.

ACTION AGAINST a Judge foR JUDICIAL ACT. - Lange v. Benedict. The decision of the Supreme Court of New York in this case is an important one, and important consequences will follow from it, if it shall finally be held to be law. The action was brought against a judge of the Circuit Court of the United States for false imprisonment, suffered under a sentence of that The plaintiff, Lange, was convicted in the Circuit Court, held by the defendant, Judge Benedict, of stealing mail-bags of the value of less than twenty-five dollars. The punishment authorized by law for this crime was imprisonment for not more than one year, or a fine of not more than $200. The judge imposed upon Lange both punishments, imprisonment for one year, and a fine of $200. Lange paid the fine, and was afterwards brought before Judge Benedict again on habeas corpus. Counsel having been heard, the judge set aside the former sentence, and sentenced Lange anew to imprisonment for one year. Another writ of habeas corpus was applied for by Lange, and the matter was finally brought before the Supreme Court of the United States. It was then determined (Clifford and Strong, JJ., dissenting) that although the Circuit Court had power to set aside the former sentence, yet it

had not authority to sentence the prisoner anew without regard to what had been done under it; that the prisoner had already undergone one of the punishments which the law allowed, and the effect of the second sentence was to punish him a second time for the same offence; the prisoner was therefore discharged. The case is reported, Ex parte Lange, 18 Wall. 163. Lange then brought this action against Judge Benedict, to recover damages for the imprisonment which he had suffered under the second sentence. The case came before the Supreme Court of New York upon demurrer, and it was held by the court that, although the act complained of was a judicial act, it was an act done without authority, and that the defendant was liable.

It is not likely that this decision will be accepted as final, and we think that it is sufficiently questionable, to be a proper matter for review by another court.

THE EXTRADITION OF Carl Vogt. We have already mentioned in this Review (Vol. 7, pp. 186, 578; Vol. 8, p. 168) some of the proceedings which have been taken to procure the extradition of Joseph Stupp, alias Carl Vogt, accused of having committed the crimes of murder and arson at Brussels, in Belgium, in October, 1871. He was arrested at New York, but there was then no extradition treaty between the United States and Belgium, and an attempt was made to have him surrendered under a statute of New York, enacted in 1822, which authorized the Governor to deliver up to justice persons accused. A writ of habeas corpus issued by a United States court was dismissed for want of jurisdiction; the writ was then granted by a State court, and it was held that the statute was in contravention of the Constitution of the United States; and this decision was affirmed by the Court of Appeals. A demand was then made by Prussia, and on habeas corpus before Judge Blatchford the prisoner was remanded, but the President refused to issue the warrant for his surrender. On the 19th of March, 1874, a treaty of extradition was concluded between the United States and Belgium. The prisoner having been committed by the United States commissioner to await the issuing of a warrant by the President for his surrender to Belgium, he was brought before the Circuit Court of the United States by habeas corpus. That Court lately determined that it had no authority to revise the judgment of the commissioner and to examine into the merits of the case, but that the inquiry was to be limited to the consideration of whether the commissioner had jurisdiction, and whether he had before him legal and competent evidence of the facts on which he passed judgment. Both of these questions were answered in the affirmative, and the prisoner was remanded to await the issuing of the warrant for his surrender.

PENNSYLVANIA.

MALICIOUS PROSECUTION. DEFENCE. In an action for malicious prosecution (Thomas v. Painter), the defendant appears to have consulted an alderman before arresting the plaintiff. At the trial the judge directed the jury upon this part of the case as follows:

"If the defendant honestly, fairly, and fully, and without reservation, stated the facts of the case as he knew them, and understood them, to the alderman, for the purpose of learning what he should do, and not as a mere color or pretext for getting the warrant, and the alderman advised him to make the arrest, and the defendant honestly and in good faith acted upon the advice in making the arrest, he is to be protected."

The Court of Common Pleas, upon an application for a new trial, held that this direction was right. If this doctrine is to be adopted as a rule of law in other places, it may be advisable for those who wish to prosecute, without incurring the risk of an action for malicious prosecution, to retain an alderman as well as counsel.

WISCONSIN.

The

ILLEGAL INFLUENCE TO PROCURE THE ELECTION OF A JUDGE. State v. Purdy. Some of the natural results of the system of filling judicial offices by popular election, after a canvass of the electors in which the respective candidates have an opportunity of laying before the public their several qualifications, and such inducements as may be likely to succeed, occasionally show themselves. It is fortunate, however, that a way is sometimes found to defeat elections obtained in this manner. A county judge was to be elected for Vernon County in 1873, the salary of which office was $1000. One of the candidates, as appeared from the pleadings in this case, on the eve of the election published and circulated in the county the following communication, which was also read to the assembled voters in each town and district on the morning of the election:

"To the Voters and Tax-payers of Vernon County.- Gentlemen: While I entertain the highest respect for the judgment and ability of each member of our county board of supervisors in fixing the salaries of the county officers, and am satisfied that no county has a better board, still I am well satisfied that the work and incidentals can be well done and furnished for the office of county judge for a less sum than $1000 a year, and feeling satisfied that I can give satisfaction in the performance of the duties of that office, I therefore, at the solicitation of many friends, announce myself a candidate for the office of county judge, for the next term, at the sum of $700 a year, and pledge myself that, if elected, I will do the work and furnish office, &c., for the said sum of $700 a year, and shall consider myself under many obligations. Being, as I am, personally acquainted with a large number of people of this county, I need say nothing of my abilities to perform the duties of that office. All of which is respectfully submitted. J. E. NEWELL.”

At the election this candidate received 1240 votes, and the defendant 1217. An action in the nature of a quo warranto at the relation of the former was brought against the defendant, who was in possession of the office; the latter alleged that votes which would have been cast for him had been given to the relator, solely by reason of his offer. The Court held that the relator's proposition was simply a promise to give the county $300 a year if they would elect him, and contained all the essential elements of bribery, and that all votes given in consideration of such promise were void and should be rejected.